Branhaven Plaza, LLC v. Inland Wetlands Commission

• Decision Date: 30 November 1999
• Docket Number: (SC 16141)
• Citation: 740 A.2d 847,251 Conn. 269
• Court: Connecticut Supreme Court
• Parties: BRANHAVEN PLAZA, LLC, ET AL. v. INLAND WETLANDS COMMISSION OF THE TOWN OF BRANFORD ET AL.

251 Conn. 269

740 A.2d 847

BRANHAVEN PLAZA, LLC, ET AL. v. INLAND WETLANDS COMMISSION OF THE TOWN OF BRANFORD ET AL.

(SC 16141)

Supreme Court of Connecticut.

Argued September 29, 1999.

Officially released November 30, 1999.

McDonald, C. J., and Borden, Berdon, Norcott, Katz, Palmer and Callahan, Js. John B. Farley, with whom were David B. Losee and, on the brief, Kathleen A. St. Onge, for the appellants (plaintiffs).

David H. Wrinn, assistant attorney general, with whom, on the brief, was Richard Blumenthal, attorney general, for the appellee (defendant commissioner of environmental protection). Brian R. Smith, with whom were Kenneth C. Baldwin and Robert J. Sitkowski, for the appellee (defendant Stop and Shop Supermarket Company).

Opinion

MCDONALD, C. J.

In this certified appeal, the plaintiffs, Branhaven Plaza, LLC, and The Great Atlantic and Pacific Tea Company, Inc./Waldbaum's, Inc., appeal from the judgment of the trial court following the granting of an application by the named defendant, the inland wetlands commission of the town of Branford (commission), for an inland wetlands permit to the defendant Stop and Shop Supermarket Company (Stop & Shop).¹ The plaintiffs claim that the trial court, Downey, J., improperly dismissed the appeal, thereby upholding the commission's decision to approve Stop & Shop's application to conduct regulated activities associated with the construction of a supermarket. We reverse the judgment of the trial court.

The relevant facts are primarily undisputed.² Stop & Shop filed an application with the commission for a permit to conduct regulated activities on property located at 1151, 1201 and 1219 West Main Street in the town of Branford, in connection with the proposed construction of a supermarket. The property in question consists of approximately 10.7 acres, and is located in the southwest part of Branford. There are three wetlands and one watercourse on the property. The first wetland, located in a topographical depression among mounds of fill and exposed bedrock, covers approximately O.21 acres and is located in the central portion of the property. The second wetland, located south of the first wetland and separated from it by discarded asphalt piles, covers approximately O.026 acres. The third wetland, described as a wet meadow community, with shrubs and trees primarily located around its edge, is approximately O.5 acres in size and is located in the southeastern section of the site. The watercourse is located in the southwestern portion of the site. It comprises some O.11 acres and consists of a sparsely vegetated channel entering the property from the west and proceeding through the site in a southeasterly direction. Stop & Shop's initial proposal called for eliminating the first and second wetlands and enhancing the area near the third wetland, which included creating a new wetland adjacent to the existing third wetland. In light of the proposed construction plan, the commission made a finding of "significant activity," as defined in § 2.1cc of the Branford inland wetlands and watercourses regulations,³ on land containing certain areas regulated as "wetlands" or "watercourses" as defined in General Statutes § 22a-38 (15) and (16).⁴ As a result of this finding, the commission scheduled public hearings on Stop & Shop's application pursuant to § 9.1 of Branford's inland wetlands and watercourses regulations. The plaintiffs intervened in the matter pursuant to General Statutes § 22a-19 (a),⁵ and participated in the administrative proceedings.

During the proceedings, Stop & Shop modified its initial proposal and, rather than create a new wetland, proposed the construction of a detention or infiltration basin on the property. This change was made in response to concerns about on-site flood control. Subsequently, the commission members raised doubts about the sufficiency of the proposal and its effect on the watershed. Stop & Shop responded to the commission's concern by proposing the payment of money and in-kind services for future off-site mitigation. The commission then accepted and integrated that proposal into the approval of the permit. On March 13, 1997, the commission approved Stop & Shop's application subject to nine conditions.⁶ Condition six provided that the "`[b]anking mitigation' offered by the applicant [is] to be accepted by the commission for future mitigation, restoration, improvement, and or study in the same watershed. This amount [is] to be not less than $25,000 plus a like amount of in kind professional/engineering services to be provided for the abovementioned purposes during the next four to five years. This funding and gift of services is to be used at the discretion of the Inland Wetlands Commission only."

The plaintiffs appealed from the commission's decision to the trial court, claiming aggrievement pursuant to § 22a-19. See footnote 5 of this opinion. Stop & Shop filed a motion to dismiss the appeal, arguing that the plaintiffs had failed to intervene properly. The trial court denied the motion to dismiss and heard argument on the merits of the plaintiffs' appeal. The plaintiffs claimed that the commission's decision was not supported by the record, and that the commission had abused its discretion by, inter alia, failing or refusing to follow its own regulations and the mandates of the General Statutes. The trial court rendered judgment dismissing the appeal, thereby upholding the commission's decision to approve the application.

The plaintiffs petitioned the Appellate Court for certification pursuant to General Statutes §§ 22a-43 (a)⁷ and 8-8.⁸ The Appellate Court granted the petition. While the appeal was pending in the Appellate Court, Stop & Shop moved to dismiss, claiming that the plaintiffs lacked standing to appeal in their capacity as intervenors. The Appellate Court denied that motion on January 27, 1999. This court then transferred the appeal to itself and issued a stay of execution. Thereafter, Stop & Shop moved this court to dismiss the appeal for lack of standing and also moved to terminate the stay. This court postponed decision on these motions until the resolution of the plaintiffs' claims on the merits discussed herein.⁹

In this appeal, the plaintiffs contend that: (1) the trial court improperly concluded that the commission could accept the payment of money and in-kind services as mitigation for the impact of the proposed activity on the wetland; (2) the receipt of storm water drainage calculations from Stop & Shop after the closing of the public hearing violated the plaintiffs' due process rights and was an improper delegation of the commission's duties; (3) the trial court improperly found that Stop & Shop's failure to introduce affirmative evidence to support its claim of no feasible and prudent alternatives was excused where the commission was aware of the issue and its finding of no feasible and prudent alternatives was merely implicit in its decision; and (4) the trial court improperly found that substantial evidence existed to support the commission's finding that soil conditions were suitable for construction of a proposed infiltration basin. We agree with the plaintiffs' first claim. In light of our holding with respect to the first claim, it is not necessary to address the plaintiffs' remaining claims.

With regard to the first claim, the plaintiffs contend that the payment of money as mitigation for the destruction of wetlands is contrary to the legislature's intent and the purpose of the Inland Wetlands and Watercourses Act (act). General Statutes §§ 22a-36 through 22a-45. Moreover, the plaintiffs maintain that this court's holding in Red Hill Coalition, Inc. v. Conservation Commission, 212 Conn. 710, 722-23, 563 A.2d 1339 (1989), that off-site mitigation, under the circumstances of that case, was permitted under the act, is distinguishable from the facts of the present case. Stop & Shop argues, to the contrary, that the trial court properly affirmed the commissioner's approval of its application. According to Stop & Shop, the facts of the present case are controlled by this court's holding in Red Hill Coalition, Inc. v. Conservation Commission, supra, 722-23. We agree with the plaintiffs.

Whether the trial court improperly concluded that the commission could accept the payment of money and in-kind services as mitigation is a matter of statutory interpretation. "Generally, [o]ur review of an agency's decision on questions of law is limited by the traditional deference that we have accorded to that agency's interpretation of the acts it is charged with enforcing.... We do not, however, accord special deference to the agency's decision when that decision involves a question of law [that] has not previously been subject to judicial scrutiny." (Citation omitted; internal quotation marks omitted.) Church Homes, Inc. v. Administrator, Unemployment Compensation Act, 250 Conn. 297, 303, 735 A.2d 805 (1999). Therefore, our review is plenary.

"The process of statutory interpretation involves a reasoned search for the intention of the legislature.... In other words, we seek to determine, in a reasoned manner, the meaning of the statutory language as applied to the facts of this case .... In seeking to determine that meaning, we look to the words of the statute itself, to the legislative history and circumstances surrounding its enactment, to the legislative policy it was designed to implement, and to its relationship to existing legislation and common law principles governing the same general subject matter." (Citation omitted; internal quotation marks omitted.) Luce v. United Technologies Corp., 247 Conn. 126, 133, 717 A.2d 747 (1998).

The regulation of inland wetlands and watercourses is governed by the act. General Statutes §§ 22a-36 through 22a-45. The statement of purpose of the act, set forth in § 22a-36,¹⁰ indicates that "[t]he inland wetlands and watercourses of the state of Connecticut are ...